12 Blatchf. 195 | U.S. Circuit Court for the District of Northern New York | 1874
Both parties appeal from the taxation, by the clerk, of the costs awarded to the complainant herein.
1. The complainant appeals from the dis-allowance of the fees of witnesses who attended and testified, who are sworn to have been necessary witnesses, who resided within less than one hundred miles of the place of examination, and whose attendance and examination were procured in good faith. The disallowance was on the sole ground, that it is not shown that the witnesses were served with a writ of subpoena, so that their attendance was compulsory. Act Feb. 26, 1853 (10 Stat. 167). Some cases have been cited by the defendants, in which it appears that some circuit courts, in other districts, have so held. Woodruff v. Barney [Case No. 17,986]; Spaulding v. Tucker, [Id. 13,221]; Dreskill v. Parish [Cases Nos. 4,075, 4,076],—decided prior to the act of 1853. But, in this district, it has been decided, that a person who attends the court as a witness, in good faith, on the request of a party, without the actual service of a subpoena, is entitled to his fees, and that such fees may be taxed against the party liable for costs. Cum
It may be well suggested, that the change in the language of Act Peb. 2S, 1799 (1 Stat 62G, § 6), -made in the act of 1853, whereby the word “summoned” was omitted, was made in view of the conflicting decisions above cited, under the former act, and the more rational provision made to which I have given interpretation. Why, else, was not the word “summoned” continued in the statute?
These reasons are applicable with equal force to the attendance before an examiner in chancery, in a suit in equity. The allowance of witness’ fees, on a voluntary attendance, may properly be limited, in respect to traveling fees, to the distance which he might have been compelled to travel, as held in a case in the southern district,— Anonymous [Case No. 432],—but that question is not material in this case. The appeal of the complainant is sustained, and an order entered by which the witness’ fees in the bill of costs are taxed and allowed.
2. The appeal of the defendant is from the taxation of the cost of printing the papers, which, by rule of court.the complainant was required to have printed. It was a necessary disbursement, made by order of the court. 1 am of opinion, that the act of congress of February 20, 1853 (10 Stat 161), was not intended to prohibit the allowance of indemnity for such disbursements as were made necessary by the order of the court, and that it does not prohibit such allowance. After the decision in Hussey v. Bradley [Case No. 6,946], this court adopted the rule which made the printing imperative. The appeal of the defendants must be overruled.